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Business Court Mediation

Mediation & Arbitration - Business Court Roster

The Business and Commercial Dispute

Docket of the New Hampshire Superior Court

I. WHAT IS THE BUSINESS AND COMMERCIAL BUSINESS DOCKET?

In 2008 the Legislature enacted RSA 491:7-a, establishing a Business and Commercial Dispute Docket in the Superior Court.  The statute provides that, without limiting the jurisdiction vested in any court in this state, and subject to appointment of a presiding justice by the Governor with the consent of the Executive Council, the Supreme Court may establish by court order, not inconsistent with the statute, a Business and Commercial Dispute docket in the Superior Court.  The Business and Commercial docket is presided over by a justice of the Business and Commercial Dispute docket who in the statute's words: "shall be an associate justice of the Superior Court" RSA 491:7-a IV.  Under the statute, the workload of the presiding justice of the Business and Commercial Dispute docket "shall be the matters before the docket". 

However, the statute goes on to provide that "the presiding justice may be assigned to any other matter within the jurisdiction of the superior court or sit by designation on any other court in the same manner as any other associate justice of the superior court as determined to be necessary by the chief justices of the superior and supreme courts."  RSA 491:7-a, V.

As a practical matter, this means that the Business and Commercial Dispute docket is simply a part of the Superior Court. The Business Court Judge is simply a Superior Court Judge whose responsibilities include handling the complex business matters defined by the statue and sent to the Court by agreement. It is not contemplated that the Business and Commercial Dispute Docket will take all of the Business and Commercial Dispute judge's time.

The Business Court is located in the Merrimack County Superior Court. One of the reasons that the Court is located in Concord is that the United States District Court has offered the use of one of its courtrooms for extremely lengthy trials if needed.

A.       The Business Court Model

The Business Court model has gained great currency in the last 20 years.  Currently a number of states, including North Carolina , California , Maryland , New York , Illinois , Nevada , Arizona , Rhode Island , Georgia , Pennsylvania , Florida , Delaware , Minnesota , South Carolina , Massachusetts and Mississippi , all have some form of a Business and Commercial Dispute Docket.  These states have recognized that business cases tend to be more complex and difficult and often raise issues not regularly seen in the Superior Court. If such cases are dealt with earlier by a judge with experience in business litigation, they can often be resolved more quickly, with a correlative positive effect on the rest of the Superior Court docket.  Six years ago the American College of Business Court Judges was established under the auspices of Northwestern University , and the group meets to share ideas, and help share best practices among the states.  Some of the standing orders and practices in the BCDD are based upon the experience in other states. 

B.       The Purpose of the BCDD

The purpose of the Business Court in New Hampshire is primarily to meet the needs of the public by dealing with the business disputes that are already in the system or likely to come to the system. It exists as well to ensure that the work of the Superior Court proceeds efficiently by making sure that large business cases do not otherwise slow the progress of the other work of the Superior Court.

II.       GETTING TO THE BUSINESS COURT

RSA 491:7-a establishes the statutory criteria for cases in the business court.  In order for a case to get in the business court, a motion must be filed by the parties.

It is important to remember that a party cannot be forced to the Business Court .  The business court only has jurisdiction under 491:7-a when:

(a) all parties have consented to the jurisdiction of the BCDD;

(b) at least one party to the action is a "business entity";

(c) no party to the action is a consumer;

(d) if the action involves a claim for money damages, the amount in controversy exceeds $50,000; and

(e) the principal claim or claims arise from the following:

(1)  breach of contract, breach of fiduciary duties, fraud, misrepresentation, business tort, or statutory violations arising out of business dealings or transactions;

(2)  transactions under the Uniform Commercial Code;

(3)  the purchase, sale or lease of commercial real or personal property or security interests therein;

(4)  surety bonds;

(5)  franchisee/franchisor relationships and liabilities;

(6)  malpractice claims of non-medical professionals in connection with rendering services to a business enterprise;

(7)  real estate title petitions;

(8)  shareholder derivative actions;

(9)  commercial class actions

(10) commercial bank transactions;

(11)  sctions relating to the internal affairs or governance; dissolution or liquidation rights or obligations between and among owners, including shareholders, partners, or members; or liability or indemnity of managers, including officers, directors, managers, trustees, or members or partners functioning as managers, of corporations, partnerships, limited partnerships, limited liability companies or partnerships, professional associations, business trusts, joint ventures, or other business enterprises;

(12) business insolvencies and receiverships;

(13)  other complex disputes of a business or commercial nature.

Although the BCDD is located in Merrimack County, it has authority to accept cases filed or which could be filed in any superior court throughout the State of New Hampshire.  By agreeing to submit a dispute to the BCDD, the parties are deemed to have consented to venue in Merrimack County.

III. MEDIATION IN THE BUSINESS COURT

Who may participate in Mediation?

Parties to an on-going case pending in any Superior Court (including the business court) may mediate pursuant to Superior Court Rule 170. The parties may choose a neutral from the standard Superior Court Rule 170 roster of neutrals, or parties who have a business dispute may use the Business Court specialized mediator roster. To use this roster, at least one party must be a business entity as defined in RSA 491:7-a, at least one party is a business entity formed or organized under New Hampshire law or having its principal place of business in New Hampshire and no party is a consumer, as that term is defined in RSA 491:7-a, with respect to the matter in dispute.

Who are the mediators?

A panel of specialized mediators who have been approved to mediate Business Court Disputes may be found at www.courts.state.nh.us. Then click on the Office of Mediation and Arbitration link and then " Business Court " for a list and to find their biographies.

How does the process work?

1. Mediation shall take place when the parties and their counsel jointly determine that it shall be most productive. Each case is different. It may be early in the case, or it may be closer to trial, as the parties and counsel agree. Parties/counsel shall confer and select a neutral third party to conduct mediation. If the parties cannot agree on who the mediator, the Business Court Judge will select the mediator for the parties at their request, from the approved list of specialized mediators for the business court.

2. If a mediator is chosen from the list of approved mediators for the business court it is important to note that they are all "market rate" neutrals. This means that they will be compensated at the hourly rate posted on their bio sheetsfor the work that they are doing in the case. There are no volunteer mediators on this specialized roster. Parties may select a neutral who is not on the court's lists of approved neutrals if the parties agree on the choice of the neutral.

3. Once the parties choose the neutral or the court assigns the neutral, the parties shall contact the neutral and request that he/she provide the parties with a schedule of fees and expenses and dates and times when they are available to conduct the initial mediation session.

4. Unless the court orders or the parties otherwise agree, the neutral's fees and expenses shall be apportioned and paid in equal shares by each party, and shall be due and payable according to fee arrangements agreed to directly by the parties and the neutral. Fees and expenses paid to the neutral shall be allowed and taxed as costs in accordance with Superior Court Rule 87(a).

5. If the neutral is chosen at the structuring conference, either by the parties and counsel, or by the court, the parties and counsel shall, within 10 days after the date of the structuring conference, contact the neutral and schedule the mediation session.

6. Except for the date by which the ADR procedure has been agree to be completed, the structuring conference order regarding ADR may thereafter be amended by agreement of the parties by filing an amended Stipulation with the court.

7. Upon receipt of notice of appointment in a case, the neutral shall disclose any circumstances likely to create a conflict of interest, the appearance of a conflict of interest, a reasonable inference of bias, or prevent the process from proceeding as scheduled. If the neutral withdraws, has a conflict of interest, or is otherwise unavailable, another shall be agreed to by the parties or appointed by the court.

Alternative Dispute Resolution Proceeding.

1. The neutral shall advise the parties in writing of the schedule for submission and exchange of mediation summaries. Unless the neutral advises otherwise, each party shall exchange a summary, not to exceed five pages, of the significant aspects of its case. The parties may also attach to the summary copies of pertinent documents. Upon receipt of a party's submission, any party may send additional information responding to that submission. Unless the neutral advises otherwise, all submissions shall be exchanged with opposing counsel and shall contain a statement of compliance with the exchange requirement. The parties may, by agreement, submit confidential mediation summaries to the mediator, which shall not be shared with the opposing parties and counsel.

2. Thirty days before the date of the first scheduled ADR session, each party must certify to the mediator that party's readiness to proceed on the scheduled date or request that the mediator reschedule the ADR session. At any time, upon written request of a party for good cause shown, the mediator may reschedule the ADR session for a date prior to the date set forth in the structuring conference order for completion of the mediation.

3. A corporation, partnership, or other entity that is a party, and a liability insurer that is defending the action, must each be represented by a person, other than outside counsel, who has settlement authority and authority to enter into stipulations. With the agreement of all parties and the mediator, any person having an interest that may be materially affected by the outcome of the proceeding may be invited to attend the session in person or by counsel. Upon agreement by the parties and with consent of the mediator, a party or counsel may attend the mediation session electronically.

4. Within 15 days after the conclusion of mediation, the plaintiff(s) or plaintiff(s)' counsel (unless otherwise agreed) must report the results of the process to the court in writing. The report may not disclose the neutral's assessment of any aspect of the case or substantive matters discussed during the session or sessions except as is required to report the information required by this paragraph. The report (form no. NHJB-2488-S) contains the following items:

   (a) the date on which the session or sessions were held including the starting and finishing times;

   (b) the names and addresses of all persons attending, showing their role in the session and specifically identifying the representative of each party who had decision-making authority;

   (c) a summary of any substitute arrangement made regarding attendance at the session;

   (d) the results of the session, stating whether full or partial settlement was reached and appending any agreement of the parties.

(e) Form no. NHJB-2488-S is available on-line at www.courts.state.nh.us/forms/nhjb-2488-s.pdf

5. In any action in which ADR does not result in a settlement, the action will proceed in accordance with any agreement reached in the ADR process, or in the absence of an agreement, as ordered by the court.

6. ADR proceedings shall not stay, alter, suspend, or delay pretrial discovery, motions, hearings, or conferences nor the requirements and time deadlines of New Hampshire Superior Court Rules 62 and 63.  However, regardless of whether the mediator was selected from the court's approved lists or not, a copy of the ADR report must be filed by the plaintiff(s) or plaintiff(s)' counsel (unless otherwise agreed): (1) within 15 days of the ADR session; (2) as an exhibit to the final pre-trial statement if the case did not resolve through ADR; or (3) as an exhibit to the docket markings.  If the ADR report is not timely filed, the court may schedule a show-cause hearing to determine the status of the ADR process and to impose sanctions appropriate to the circumstances, if necessary.

Inadmissibility of Alternative Dispute Resolution Proceedings.

1. ADR proceedings and information relating to those proceedings shall be confidential. Information, evidence, or the admission of any party or the valuation placed on the case by any neutral shall not be disclosed or used in any subsequent proceeding. Statements made and documents prepared by a party, attorney, or other participant in aid of such proceeding shall be privileged and shall not be disclosed to any court or arbitrator or construed for any purpose as an admission against interest. All non-binding ADR proceedings such as mediation are deemed settlement conferences consistent with the Superior Court Rules and Rules of Evidence. In addition, the parties shall not introduce into evidence in any subsequent proceeding the fact that there was an ADR proceeding or any other matter concerning the conduct of the ADR proceedings except as required by the Rules of Professional Conduct or the Mediator Standards of Conduct.

2. Evidence that would otherwise be admissible at trial shall not be rendered inadmissible as a result of its use in an ADR proceeding.

Sanctions.
If a party or a party's counsel fails without good cause to appear at an ADR session scheduled pursuant to this rule, or fails to comply with any order made hereunder, the court may, on its own or upon motion of a party, impose any sanction that is just under the circumstances.

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